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Wednesday, February 26, 2020

Carnival escapes liability for girl killed by car while crossing street to Burger King

By Dee Thompson | Oct 24, 2017

Car accident 32

CONCORD, N.H. (Legal Newsline) - A carnival operator is not responsible for the death of a teenage carnival-goer who was crossing the street in the town of Derry, the New Hampshire Supreme Court has decided.

The high court on Oct. 4 affirmed a lower court ruling on a hit-and-run case that occurred near the Fiesta Shows carnival grounds in 2013.  

Sophia Christen, 15, was walking on a street near the carnival on May 3 and was killed by a car traveling through an intersection. Christen was with friends and seeking to cross the street to get to a Burger King to wash her hands after eating cotton candy. 

The walk signal at the intersection was malfunctioning, but Christen and her friends decided to cross the street anyway, according to the court's opinion. 

The teen's mother, Elaine Christen, brought a wrongful death suit against Fiesta Shows, alleging negligence and wanton and reckless conduct. After the teen's death, Fiesta hired off-duty police officers. 

"At the suggestion of the Derry Police Department, Fiesta arranged for additional police coverage to direct traffic and assist with pedestrian crossing on Manchester Road,” the high court's Oct. 4 decision said.

Fiesta moved for summary judgment, saying it owed no duty of care to Christen. The plaintiff had argued that it was reasonable to assume that teenagers who had consumed cotton candy and needed to wash their hands would have to go to the nearest fast-food shop to use the restroom, as there were no regular restrooms with running water available at the carnival. 

It was also suggested that the hiring of police officers by the carnival meant the carnival recognized a duty to safeguard carnival attendees seeking a bathroom. 

In order to prove negligence, “a plaintiff must show that the defendant owes a duty to the plaintiff and that the defendant’s breach of that duty caused the plaintiff’s injuries,” the court's decision said.

The lower court found that Fiesta did not control the public road and therefore was not negligent in Christen’s death. 

“We hold that Fiesta did not owe Sophia a duty of care, or voluntarily assume such a duty," Chief Justice Linda Dalianis wrote. "Accordingly, Fiesta is entitled to judgment as a matter of law and, therefore, we affirm the trial court’s ruling granting Fiesta’s motion for summary judgment.”

Dalianis' opinion was affirmed by justices Robert Lynn and Justice James Bassett. 

The plaintiff was represented by attorney Jared R. Green of Manchester. Attorney Deborah L. Mayotte represented the defendant.

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New Hampshire Supreme Court